Attack on Clean Water...

Orangutan has begun dismantling Obama’s EPA rules. First up: the Clean Water Rule.

By Brad Plumer

At first glance, it’s hard to see why the Clean Water Rule (also known as the “Waters of the US rule”) inspires such fury. It’s a technical regulation from the Environmental Protection Agency meant to clarify which streams and wetlands fall under federal clean water protections — a question that had been causing legal confusion for years.

But when the rule was published in June 2015, it triggered fierce blowback from farm and industry groups across the country. “Opponents condemn it as a massive power grab by Washington,” Politico reported, “saying it will give bureaucrats carte blanche to swoop in and penalize landowners every time a cow walks through a ditch.” Many of those criticisms were overblown, but the rule was widely cited by conservatives as a prime example of EPA overreach under President Obama. (Note that the regulation is currently tied up in court and hasn’t taken effect yet.)

Now Donald Orangutan wants to get rid of the rule — a first step in his ongoing efforts to dismantle Obama-era EPA regulations. On Tuesday, he signed an executive order that asks new EPA Administrator Scott Pruitt to begin the long process of repealing the rule and replacing it with... something else.

Except here’s the catch: Rolling back this rule won’t be easy to do. By law, Pruitt has to go through the formal federal rulemaking process and replace Obama’s regulation with his own version — and then defend it in court as legally superior. And, as Pruitt’s about to find out, figuring out which bodies of water deserve protection is a maddeningly complex task that could take years.

What the Waters of the US rule actually does

To understand this rule, we need to go back to 1972, when Congress passed the Clean Water Act. That law features dozens of regulations for anyone discharging pollution into the “waters of the United States” that could affect human health or aquatic life.

For instance, under the law, a facility storing oil that could leak needs to prepare a spill prevention plan aimed at minimizing discharges. If the facility is far away from any “waters of the United States,” however, it doesn’t face these requirements.

Now here’s the tricky part. The Clean Water Act doesn’t precisely define what “waters of the United States” means. That’s left to the EPA and the Army Corps of Engineers. And it’s a hard question! For instance, the law is clear that major navigable rivers and lakes and any connected waterways should be protected. But what about waterways that are only loosely connected? What about the 60 percent of streams that are dry for part of the year but then connect when it rains? Any pollution dumped into those waters could affect downstream ecosystems. Should they be regulated?

In the 2000s, this uncertainty led to a pair of Supreme Court decisions that only ended up creating more bewilderment. In a split decision in Rapanos v. United States in 2006, Justice Anthony Kennedy argued that Clean Water Act protections applied to wetlands that “significantly affect the chemical, physical, and biological integrity of other covered waters.” But Justice Antonin Scalia argued that protections only applied to wetlands "with a continuous surface connection" to navigable water — a far smaller number of wetlands. And it wasn’t totally clear which opinion took precedence.

"The short answer is that the state of post-Rapanos wetlands jurisdiction is a mess," Richard Frank of the University of California Davis told Greenwire in 2011. In the ensuing years, whenever a dispute arose over whether a landowner needed a Clean Water Act permit or not, courts had to resolve it on a case-by-case basis.

So, under Obama, the EPA and Army Corps of Engineers tried to bring clarity to the matter. They sifted through more than 1,200 scientific papers to figure out which types of bodies of water were important to aquatic ecosystems and therefore deserved protection, per Kennedy’s opinion.

The final Waters of the US rule, published in June 2015, outlined which bodies of water were automatically covered by the Clean Water Act — requiring permits for any discharge of pollution — and which ones still needed to be dealt with on a case-by-case basis. For instance:

In the past, tributaries of navigable rivers were evaluated on a case-by-case basis. But under the new rule, they’re automatically protected if they have a bed, a bank, and a high-water mark. This includes many streams that are dry for part of the year. Waterways without these features are still dealt with case by case.

Wetlands and ponds are now automatically covered if they’re within 100 feet or within the 100-year floodplain of a protected waterway, since pollution in these bodies can flow elsewhere. Otherwise, it’s case by case.

Certain “isolated” waters that are not connected to navigable waters now get automatic protection if they have a “significant nexus” to protected waters — like the vernal pools of California.
The rule also explicitly exempted a number of bodies of water often found on farms, such as puddles, ditches, artificial ponds for livestock watering, and irrigation systems that would revert to dry land if irrigation were to stop.

For its part, the EPA argued that this rule didn’t significantly expand the waters under its jurisdiction. Rather, it created more certainty for about 3 percent of the nation’s waterways — to avoid bringing cases to court every time there was a legal gray area. According to the EPA, the rule offered clearer protection to upstream tributaries that feed into drinking water supplies for one-third of the population.

Before the rule came out, few who worked on it expected widespread blowback. “This rule will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act,” Obama said when the final rule was announced. But things turned out very differently.

Why the Waters of the US rule became so controversial

Opponents of the rule — particularly farming and ranching groups — clearly didn’t buy the EPA’s line that this was only a technical update. Nor were they comforted by the EPA’s exemptions for agriculture. Instead, they called it a power grab.

“The agency is making it impossible for farmers and ranchers to look at their land and know what can be regulated,” argues the American Farm Bureau Federation on its site. “EPA has vastly expanded its authority beyond the limits approved by Congress and affirmed by the U.S. Supreme Court.”

Some Western farmers, for instance, fretted about the open, unlined canals they use to irrigate their lands during the growing season. These systems divert water from streams, serve as water sources for wildlife, and can connect to larger bodies of water elsewhere. As Reagan Waskom and David Cooper of Colorado State University explain, farmers and ranchers feared that these canals would fall under the rule’s definition of “tributary” and might have to be replaced by costly pressurized pipes. Or, alternatively, that fertilizer use near these waterways would be more strictly regulated.

Defenders of the rule dismissed these scenarios. Jon Devine, a lawyer with the Natural Resources Defense Council, points out that the Clean Water Act has always regulated agriculture lightly. “This rule doesn’t really change those exemptions,” he says. Indeed, one recent study found that the EPA’s jurisdiction over farms actually shrank under the new rule.

The EPA was also pretty explicit that it wouldn’t target farmers. “We will protect clean water without getting in the way of farming and ranching,” then-EPA Administrator Gina McCarthy told the National Farmers Union in 2015. But few farmers or ranchers believed her. Their argument was that the rule was vague enough that the EPA could crack down on them if it chose. It’s basically a question of trust. And at the moment, conservatives are not particularly inclined to trust the EPA.

Joni Ernst, a Republican senator from Iowa, made that clear in Pruitt’s confirmation hearing. “My constituents tell me the EPA is out to get them rather than work with them and there is a huge lack of trust between many of my constituents and the EPA,” she said. “If we take a look specifically at the WOTUS rule, Iowans truly feel that the EPA ignored their comments and concerns, threw them under the rug and then just moved forward.”

Devine argues that the small-farmer concern is a sideshow, and many industry and agribusiness groups oppose the rule because they benefit from the legal uncertainty the rule was designed to dispel. So long as there’s ambiguity about where the Clean Water Act applies, it’s much harder for citizen groups or the Department of Justice to bring a case against companies dumping chemicals or other pollutants into smaller bodies of water upstream.

“Without this rule, enforcement has been unpredictable,” Devine says. “The EPA has mainly been focused on big rivers and lakes so that they wouldn’t have to litigate to the ends of the earth about whether the Clean Water Act applied to waters upstream. But if you can only regulate the biggest rivers and lakes — and the pollution problem is much further upstream — then you’re not effectively protecting the receiving water or the watershed.”

But however the backlash started, it took on a life of its own. Donald Orangutan began citing the water rule on the campaign trail as an example of EPA overreach, earning cheers from rural audiences. And now he’s moving to kill it entirely. In signing his executive order on Tuesday, he called it a “destructive and horrible rule.”

Orangutan, however, can’t just repeal this rule through executive order. Both the Army Corps of Engineers and Scott Pruitt’s EPA will have to go through the federal rulemaking process to replace it. That requires proposing a new rule that’s supported by extensive scientific and legal arguments, opening up the proposal for public comments, responding to those comments, and then defending the final rule in court as a superior approach. This could take several years, at least.

What will make Pruitt’s task so difficult is that the ambiguity around which waterways deserve Clean Water Act protection still holds even if you repeal the Obama rule. Which wetlands are covered? How do you deal with streams that flow part of the year? How do you interpret that mess of a Supreme Court decision in 2006?

In his executive order today, Orangutan asks Pruitt to consider Scalia’s opinion in Rapanos, which extended protection to wetlands only if they had a “continuous surface connection" to navigable waterways and extended protection to streams only if they were “relatively permanent.” If Pruitt relied on this guidance, his replacement rule would cover far fewer waterways — leaving out, for instance, the 60 percent of streams that don’t flow year-round.

Environmentalists fear that a scaled-back rule like this would give companies much more leeway to pollute certain waterways that are nonetheless important to wildlife and human health — and neuter the EPA’s ability to intervene.

Still, an approach like this isn’t guaranteed to succeed. Federal courts have typically embraced Kennedy’s more expansive interpretation of the Clean Water Act rather than Scalia’s, and any rollback of Obama’s rule would still leave plenty of legal gray areas where the courts will need to decide on a case-by-case basis whether the Clean Water Act applies. “It’s going to be incredibly complex to figure this out,” says Richard Revesz, a professor of environmental law at New York University.

In all likelihood, Pruitt’s new rule — if it actually gets finished before 2020 — will end up before the Supreme Court. He’s got a tough slog ahead of him.